1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 v.

IN THE SUPREME COURT OF THE UNITED STATES
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UNITED STATES POSTAL SERVICE, Petitioner :
:
: :
No. 00-758

MARIA A. GREGORY.

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Washington, D.C.
Tuesday, October 9, 2001
The above-entitled matter came on for oral
argument before the Supreme Court of the United States at
10:02 a.m.
APPEARANCES:
GREGORY G. GARRE, ESQ., Assistant to the Solicitor
General, Department of Justice, Washington, D.C.; on
behalf of the Petitioner.
HENK BRANDS, ESQ., Washington, D.C.; on behalf of the
Respondent.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ORAL ARGUMENT OF

C O N T E N T S
PAGE

GREGORY G. GARRE, ESQ.
On behalf of the Petitioner HENK BRANDS, ESQ.
On behalf of the Respondent REBUTTAL ARGUMENT OF
GREGORY G. GARRE, ESQ.
On behalf of the Petitioner 54
26
3

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P R O C E E D I N G S
(10:02 a.m.)
CHIEF JUSTICE REHNQUIST: We'll hear argument

now in No. 00-758, United States Postal Service v. Maria
A. Gregory.
Mr. Garre.
ORAL ARGUMENT OF GREGORY G. GARRE
ON BEHALF OF THE PETITIONER
MR. GARRE: Thank you, Mr. Chief Justice, and

may it please the Court:
For decades Federal employers and the Merit
Systems Protection Board have engaged in the common sense
practice of considering an employee's prior disciplinary
record in deciding what punishment is appropriate for
subsequent misconduct. The settled practice has long been

to do so, even when a prior disciplinary action is subject
to a pending labor grievance, although in that context,
the board permits the employee to collaterally attack the
prior actions in proceedings before it.
In this case, the Federal circuit --
QUESTION: If there is a collateral attack, the

employee says, look, I filed a grievance and it's pending,
what then is the burden of proof by the Government
employer?
MR. GARRE: The Government employer bears the
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burden of proving the action by a preponderance of the
evidence. statute. That's the standard that's set out in the
Now, that -- that burden of proof -- the

evidentiary focus of the hearing is on whether the
Government has proved the charges resulting in the adverse
action. Here those charges --
QUESTION: But what -- what is it with regard to

the prior offenses, if you will, that have -- for which
grievance procedures have been filed? addressed?
MR. GARRE: Under the longstanding framework,
How is that then

which is established by the board's Bolling decision, the
employer has to prove the fact of the prior action, and he
has to -- and the employer has to prove that it was
preceded by certain procedural protections: first, that

the employee received advance notice of the action;
second, that the employee had an opportunity to respond to
the charges before the supervisor, as well as by a higher
authority within the agency; and third, that there was a
record --
QUESTION: Does that just mean somebody higher

up the ladder in the employing agency?
MR. GARRE: It does, and that's -- and that's

the same type of challenge that is framed in the early
stages of the grievance process. 4
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It's an independent

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authority than the supervisor.
In this case, the notice of removal was -- the
proposed notice was made by the respondent's supervisor,
but the -- the actual notice of decision was entered by a
labor relations specialist who -- who was in a different
district, independent from the supervisor.
QUESTION: Well, what if the final action, the

decision to terminate the services of the employee -- what
if it had been based on the commission of some prior
failure as an employee and the grievance procedure had
proceeded and it had been determined that it was invalid?
MR. GARRE: In that circumstance, the board has

held that it would be inappropriate to rely on that action
to defend the subsequent action. However, until or unless

a prior action is proved to be unreliable, there's no
basis for the Federal circuit's rule which presumes that
prior disciplinary actions are unreliable and effectively
presumes that employers act in faith when they take
important disciplinary actions --
QUESTION: QUESTION: What happens --
There was, in fact, here three

preceding incidents, as I recall, and a grievance was
filed on all of them. As to one, it had already been

determined that the grievance -- that the disciplinary
action was improper.
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MR. GARRE:

That's correct.

And -- and that can

happen, but it doesn't undermine the legitimacy of prior
actions that have not been overturned.
And in addition, the board has a reopening
mechanism which permits employees to bring to the
attention of the board any new evidence, including any
evidence that a prior disciplinary action has been set
aside.
The grievance is not a step in the decision
making of the prior disciplinary action.
QUESTION: What about Justice O'Connor's

And let me add one thing, that the prior
Now, in this

disciplinary actions are being grieved.

case, the later event leads the board to fire the person
in light of the prior disciplinary matters. Then after

the person is fired, the board attorney goes to the
grievance person, the arbitrator, and says, there's no
need to continue this because the person doesn't work for
us anymore. situation?
MR. GARRE: Well, first of all, there's --
Now, what's supposed to happen in that

grievances can be pressed before, during, and after
appeals before the Merit Systems Protection Board. The

Merit Systems Protection Board, after all, has come up
with a practice which allows it to decide appeals before
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it, and it chooses to consider the prior disciplinary
actions, whether or not they're -- they're subject to a
pending grievance.
If a grievance does proceed and it proves
successful, then the board has a procedure by which it can
reopen an appeal and reconsider the appeal --
QUESTION: What's the answer to my question? My

question was -- should I repeat it or you have it?
MR. GARRE: My understanding is that even when a

grievance is proceeding, the board would -- would proceed
with the processing of its appeal.
QUESTION: situation. My question is take the present
All right? Now,

Let's call it bad thing A.

they're going to fire the person because of bad thing A
because there are previous disciplinary things, X, Y, and
Z. X, Y, and Z are all in the process of being grieved.

Now, they fire the person because of A, and then they go
to the arbitrator who's doing X, Y, and Z, and the board
says, arbitrator, stop everything, cancel the proceeding,
don't continue because she doesn't work for us anymore. want to know how -- how we deal -- how you deal, how the
-- how someone deals with that situation.
MR. GARRE: question.
The board doesn't have the authority to go to an
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I'm sorry. I misunderstood your
I

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arbitrator and tell the arbitrator to stop the proceeding.
What sometimes happens is the union chooses to withdraw
grievances when an employee -- employee's removal has been
affirmed by the board. That's a decision that the Civil

Service Reform Act and the collective bargaining agreement
leave to the prerogative of the union. The union's

decision to withdraw a grievance, after an employee has
been removed, provides no more basis for --
QUESTION: So, your answer is, to my

hypothetical, it can't happen.
MR. GARRE: The board can't go to an arbitrator

and tell him to stop.
QUESTION: employer? Well, can the -- what about the

Can the postal department say, well, you know,

she's not an employee here anyway, you don't need to
continue this? Or is it -- you -- you leave me with the

impression, rightly or wrongly, that this -- that this is
just at the option of the union.
MR. GARRE: QUESTION: It's --
The union can proceed if it wants or

doesn't have to proceed.
MR. GARRE: That's a matter covered by the
The Civil Service

collective bargaining arrangement.

Reform Act provides for the creation of a negotiated
grievance procedure. The union and the employer have
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reached a memorandum of understanding, under which once,
in this case, in the -- in the collective bargaining
arrangement in this case governing Postal Service
employees, once an employee is removed for disciplinary
reasons, the union typically withdraws the grievances.
When the employee is not removed for disciplinary reasons,
the union chooses to press the grievances. Those are

matters covered by the collective bargaining agreement,
and they provide no basis for upholding the Federal
circuit rule which creates a categorical rule that
employers can't --
QUESTION: Well, but -- but what we're trying to

establish -- and I think you would have to concede -- that
there are some instances in which once the employee is
terminated, the grievance proceedings as to other matters
must stop.
MR. GARRE: because of --
QUESTION: And it -- and it's not just because
That can happen and it happens

it's the option of the union other than what the union
agreed to in the collective bargaining agreement.
MR. GARRE: The arrangement is the -- the

grievances are withdrawn by the union or they're withdrawn
under the arrangement that's been worked out under the
collective bargaining agreement.
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QUESTION: QUESTION: QUESTION: agreement is silent.

Suppose there's --
Of course, that --
-- the collective bargaining
Can the employer agency say, this

employee is no longer with us and therefore you should
terminate? And the arbitrator could then do it?
MR. GARRE: That -- that would be a decision

left to the arbitrator under the framework of the
negotiated grievance. QUESTION: It can happen.
All right. Then once again, if it's

covered by the collective bargaining agreement, there's no
choice in the matter, the grievance is stopped. If it's

not covered by the collective bargaining agreement, it may
still be stopped at the option of the arbitrator, and
there's nothing the employee can do about it. Now, this

may not be fatal to your case, but if this happens, I
think we should confront it. QUESTION: And Justice Breyer --

Mr. Garre, I assume that this would

Does the ability of the union to terminate a

grievance exist even if the employee is fired the first
time? When event X occurs, the employer says, this is
It's

serious enough, you're fired after a proper hearing.

up to the union whether to grieve that or not, isn't it?
MR. GARRE: QUESTION: That's right.
And the union could say, you know, I
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think you deserved it and -- and we're not going to
proceed any further.
MR. GARRE: leaves to the --
QUESTION: So, this injustice is not an -- if --
That's correct. The -- the act

if that -- if that's what it is, is not an injustice
peculiar to this arrangement. It -- it's a necessary

effect of leaving the prosecution of the grievance up to
the union.
MR. GARRE: That's right. And -- and the act

does leave the prosecution of the -- of the grievance up
to the union and --
QUESTION: MR. GARRE: QUESTION: Mr. Garre?
-- through the arbitration.
In civil litigation generally, when

there -- when there's a proceeding that's dependent on a
prior proceeding that's on appeal, the standard operating
procedure is for the second proceeding to be held at
abeyance pending the appeal of the first. Now, if we

followed that model, then we could say, yes, the employer
could take the disciplinary step, but while that's being
challenged, the MSPB must hold its case in abeyance until
the grievance goes through the process.
Now, why isn't that solution, which applies in
civil litigation generally, applicable here?
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MR. GARRE:

It's -- it's very problematic.

But

first of all, the general rule applied by the Federal
courts in the collateral estoppel effect is the fact that
a prior case is on appeal doesn't prevent a court from
giving the underlying case collateral estoppel effect.
But --
QUESTION: It doesn't -- doesn't prevent it, but

it is the standard proceeding to hold the second one in
abeyance.
MR. GARRE: QUESTION: But --
So that you don't have the -- the

anomaly of giving effect to a judgment that has been
overturned.
MR. GARRE: There are several problems with the

abeyance rule adopted by the Federal circuit, which is
essentially the narrow rule which is hypothesized by
respondent.
First and most fundamentally, the Civil Service
Reform Act limits the Federal circuit's scope of review to
whether a legal ruling of the board is arbitrary,
capricious, an abuse of discretion, or otherwise contrary
to law. So, it's not enough for the Federal circuit to

come up with a rule that it thinks is fair or makes more
sense. It has to come up with a rule which it thinks is
And the Federal circuit

compelled by a provision of law. 12

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did not cite any provision.
Secondly, as a policy matter, the abeyance rule
is very problematic. The abeyance rule, first of all,

would frustrate Congress' intent to streamline the
administrative appeals process --
QUESTION: Why -- why, if the agency action goes
What I'm presenting to you is
The agency says

into effect immediately?

the -- the thing goes through the agency. you're out, and the person is out. efficiency concern.

So, you have the

If, as, and when the prior grievances are
overturned so that the MSPB would no longer have those to
rely on, then the remedy could be reinstatement with back
pay. But that example, if that's how the Federal circuit
In the

decision works, meets your efficiency concern. interim, the employee is out.
MR. GARRE:

Well, first of all, although the

employee is placed in a non-duty/non-pay status when she's
removed by the agency, she continues to fill a permanent
slot on the agency's rolls, and if the abeyance rule is
going to require agencies to keep the employee in that
position for months, if not years, on end, that's
problematic from the employer's perspective.
Second and more generally, the abeyance --
QUESTION: Well, if that's -- would you explain
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that if to me?

Two, why would the -- why if the firing is

-- is okay, at least until it's overturned, why couldn't
the -- the agency fill the vacancy?
MR. GARRE: The -- the employee is placed --

under the practice followed by the Postal Service and I
believe other employers as well, the employee occupies the
full-time slot, and until her removal is affirmed by the
board, she continues to fill that slot. Now, the employee

can replace her position with -- with temporary workers,
but nevertheless, from the employer's standpoint, he's
prevented -- the employer is prevented from filling that
-- that full-time slot.
The abeyance rule creates other problems. it leaves the most important disciplinary decisions,
including a removal and -- hanging limbo for months, if
not years, on end.
QUESTION: MR. GARRE: QUESTION: Well, when you speak of months --
It also --
May I just ask you to get into this
The months and years problem
It --

problem of months and years?

I -- I understand is simply a function of what you claim
to be the slow pace of arbitration. and years to do it. It may take months

But if the arbitration, in effect, is

a creature of the collective bargaining agreement, why
isn't it open to the Government and the -- the union
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simply to come up with a streamlined arbitration procedure
so instead of taking months and years, it's going to take
a month?
MR. GARRE: I think they have tried, but the

fact is that in the Postal Service, there's currently
126,000 grievances pending in that process, backlogged.
And the fact is that grievances are taking as long as
years, not in every case, but certainly in many cases,
they're taking years to be processed through arbitration.
And this is the situation --
QUESTION: arbitrators.
MR. GARRE: Well, this is the situation that
Well, I guess we need more

exists, and the board isn't required to hold its appeals
in abeyance while that procedure is played out.
QUESTION: No, but my -- my -- I guess my point
There

is that you say this is the situation that exists.

are a number of reasons why it exists, but -- but one of
the responsible parties, it seems to me, is your client,
is the Government. And why -- why isn't it the

Government's responsibility, along with the union, to come
up with a grievance procedure, whether it calls for more
arbitrators or different procedural rules? I have no

idea, but why isn't it the -- the responsibility of the
parties to come up with a procedure that's not going to
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take years?
MR. GARRE: Well, first of all, the inherent

informality of the grievance and arbitration process is
always going to invite delay. case.
And second of all --
QUESTION: Well, litigation invites delay. But
That's not new to this

if a judge takes charge of a case, the delay is reduced,
and the case moves forward expeditiously. arbitration?
MR. GARRE: Well, that hasn't happened, and I
Why not in

don't think it's unique to the Postal Service arbitration
context.
There are also mechanisms in place, as this
Court recognized in the Cornelius case, which can address
that, and that's that either side can file an unfair labor
practice charge. arbitration. Either side can seek to compel

Either side can file a grievances.
Mr. Garre, do you think that for

QUESTION:

purposes of either collateral estoppel or for purposes of
whether a criminal court can use a prior conviction in
deciding the sentence -- do you think it's accurate to
analogize the grievance procedure as a prior case pending
on appeal? Or would you rather characterize it as a

collateral attack --
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MR. GARRE: QUESTION: MR. GARRE:

I think it's --
-- upon final action by the employer?
I think it's the latter. I think
It's not

that the grievance is a collateral proceeding. -- it's not an appeal in itself. collateral proceeding --
QUESTION:

It's -- it's a

And -- and what happens to collateral

attacks when you have a final criminal conviction and
there is a collateral attack on that criminal conviction,
although the conviction itself is final? When a

sentencing court has that conviction before it, does it
not use that conviction?
MR. GARRE: Absolutely. In fact, I think the

sentencing guidelines direct the court to take that
into --
QUESTION: And if the collateral attack is later

successful, what is -- what is the remedy for the person
who's been convicted?
MR. GARRE: Then they can bring it to the

attention of the court and ask for relief.
QUESTION: proceeding.
MR. GARRE: That's correct. And that -- and
To reopen -- to reopen the

QUESTION:

What should we do here? 17

We have a

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case here where, as I understand it, there were three
prior complaints by the employer that resulted in some
form of disciplinary action. three. Grievances were filed in all

With the discharge proceeding, the employee then
And before the board acted, one of

appealed to the board.

the grievances pertaining to the first infraction was
found in the employee's favor.
Now, what should we do? It's been remanded, as

I understand it, now by the court of appeals to the board.
Does it need to be? Because the termination relied in

part on all three of these things.
MR. GARRE: Well, we think that this Court

should decide the question presented, reverse the decision
below, and remand for further proceedings, allow the
Federal circuit --
QUESTION: grievances filed?
MR. GARRE: The other two grievances were
What happened to the other two

withdrawn by the union when the board affirmed the -- the
removal. The union has -- has tried to reassert those,

and the Postal Service's position is that this Court ought
to decide this case, and then we can consider what should
happen there.
Now, this Court should decide the question
presented, and it can remand for further proceedings.
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This -- the Federal circuit --
QUESTION: Why is the remand necessary? What --

if we agree with -- with you on the merits, what -- what
remains to be decided by the Federal circuit?
MR. GARRE: The -- the issue that -- that

remains open is the question of what effect the grievance
that has been set aside should have on the board's
decision affirming the removal.
Now, we think that an argument could be made
that the Federal circuit could affirm since the respondent
did not bring that grievance to the attention of the
Federal -- to the Merit Systems Protection Board, although
she indisputably could have, and she raised it for the
first time in the Federal circuit. that this Court needs to address --
QUESTION: You say if we reverse on the question
But we don't think

presented, we should leave it to the Federal circuit to
decide whether to direct reopening of the proceedings or
to affirm the MSPB?
MR. GARRE: this Court to do.
We're concerned about the Federal circuit's
categorical rule that Federal employers and the Merit
Systems Protection Board can't consider these prior
disciplinary actions, engage in what is, for public
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employers and private employers, a time-honored management
practice --
QUESTION: There's a disagreement between you

and the respondent, is there not, about whether the
agency, the Postal Service, is bound or whether it's only
the MSPB. I -- I think that you say the Federal circuit

has said nobody can take account of these prior
infractions. And the respondent says, the MSPB can't but

the employing agency can.
MR. GARRE: We -- we think that the fairest

reading of the court of appeals decision, as it applies
both to Federal employers and the Merit Systems Protection
Board, the holding of the court is unqualified. It says

that consideration may not be given to these prior actions
as long as there are grievances. The remand order of the

court indicates that the court of appeals viewed that rule
as limiting the -- the prior actions that the agency could
consider in this case based on whether or not they're
subject to further proceedings.
QUESTION: Okay. Their -- their point on that

particularly is -- the particular point I think on this is
that the Federal circuit really just said the -- the MSPB.
And normally by the time something gets to the MSPB, all
the prior grievances will be resolved because that takes a
very long time to get there. And then if the occasional

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case comes up where it wasn't resolved, the MSPB can just
postpone deciding it, I guess, during which time the
employee is out of work. So, there's no harm done through

that narrow interpretation of the circuit.
What's your response to that?
MR. GARRE: Well, first of all, we don't -- we

don't think that's the fairest interpretation of the court
of appeals decision. But even assuming this Court were to

adopt that interpretation, there are several problems with
the Federal circuit's abeyance -- with respondent's
abeyance rule.
The first is -- is that it frustrates Congress'
intent to streamline the administrative appeals process.
Congress placed a duty upon the Merit Systems Protection
Board to expedite its proceedings to the extent
practicable because one of the factors that led to the
enactment of the Civil Service Reform Act in 1978 was the
concern that the overly elaborate procedural protections
which had developed under the prior Civil Service regime
had -- had prevented employers from taking the most
effective disciplinary measures because of concerns that
things would be subjected to drawn-out appeals. Employers

simply weren't taking the most effective disciplinary
action. That's one of the problems --
QUESTION: Mr. Garre, does the Government
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acknowledge that the MSPB can determine that it is
arbitrary, capricious, or an abuse of discretion for the
agency to decline to reopen a proceeding after a grievance
has gone forward and has found one of the convictions on
which the dismissal is based to have been invalid?
MR. GARRE: The -- the board's regulations

permit the board to reopen any case at any time to
reconsider it in light of a grievance which may have
proved successful. And our position is that employees

have the opportunity to request --
QUESTION: permit that?
MR. GARRE: QUESTION: Yes.
Is it a matter of the board's right?
Excuse me. The board's regulations

Doesn't the board have to find that the agency action, in
refusing to reopen, is arbitrary, capricious, or an abuse
of discretion? I mean, the board can say when it will

reopen it's own cases, but -- but the board can't tell the
agency when the agency must reopen its cases, can it,
unless the failure to reopen is arbitrary or capricious?
MR. GARRE: correct. No. That's correct. That's

I'm -- I'm sorry.

I thought you were asking

about the board's reopening rule.
QUESTION: reopening. I'm not talking about the board's

I'm talking about ultimate success in the
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grievance and then -- then the employee comes back to the
agency and says, look, you -- you goofed. guilty of that. no.
MR. GARRE: QUESTION: Well, certainly in that --
Can the board find that to be an
Would you reopen it? I really wasn't

And the agency says

abuse of discretion?
MR. GARRE: That's -- the typical practice is

that the employee will go to the board and say, reopen my
appeal because this grievance has proved successful. If

the employee went to the employer first and asked it to
reconsider it, then I suppose the employee could appeal
from another decision, if there were another decision, on
the discipline. But the more common practice is for the

employee to go to the Merit Systems Protection Board and
say, reopen my case because of this subsequent action.
So, typically --
QUESTION: And that's the MSPB rule, that if --

if while the MSPB thing is still going on, one of the
grievances -- the MSPB, if the person hasn't been fired,
will reconsider. So, the employee is instructed to go to

the MSPB, not back to the employing agency.
MR. GARRE: board may do that. The employee may do that, and the
And the reopening procedure is

available under the board's regulations at any time.
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QUESTION:

But it's discretionary, isn't it?

The board doesn't have to reopen if it doesn't want to.
MR. GARRE: It is discretionary, and that's

really no different than any other reopening procedure
which would exist to enable a court or other body to
reconsider something in light of subsequent evidence.
The -- the respondent's basic position and the
Federal circuit's basic position is predicated on the
notion that prior disciplinary actions are unreliable and
that Federal employers act in bad faith when they impose
discipline. And we respectfully take issue with that.
Also on the proposition that they are

QUESTION:

not final in -- in the sense that -- that a -- a judicial
determination is final. It seems to me that's -- that's

important to the -- to the analysis.
MR. GARRE: We think that they are final.

They're preceded by the procedural protections set out in
the act, and they're final enough to warrant the
imposition of discipline in a minor case. If they're

final enough to warrant the imposition of discipline,
they're final enough to warrant collateral effect in
appeal before the board. minor actions.
QUESTION: I don't want to consume your rebuttal
And here we're talking about the

time, but there's one question that still hasn't been
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answered for me.
On remand, what would your position be as to the
two unadjudicated grievances?
MR. GARRE: We think that the board can take

those into account under the Bolling framework, which
allows the board to consider the prior disciplinary
actions under a procedural framework which looks to the
procedural protections provided in those proceedings and
then considers whether those actions --
QUESTION: What would your position be before

the Postal Service as to the union's request to reopen
those?
MR. GARRE: QUESTION: To reopen the?
Those -- or to continue those --

those pretermitted grievance proceedings.
MR. GARRE: Those arbitrations could go forward.

Again, there's nothing that --
QUESTION: going forward?
MR. GARRE: QUESTION: The --
I thought -- I thought the union was
And you have no objection to those

wanting to go forward, and the Postal Service didn't.
MR. GARRE: Under the memorandum that's in

place, if the respondent's removal were affirmed by the
board, then under the memorandum in place, the union's
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practice is to withdraw those agreements under the
collective bargaining arrangement. That could be

renegotiated or reconsidered, but that's the practice in
place, and that's something that the act permits the
parties to agree to under the negotiated grievance
framework.
QUESTION: Mr. Garre, apropos of the remand, you

mentioned that the respondent had not brought to the
board's attention the fact that the arbitrator had ordered
the first disciplinary action vacated. Did the Government

have any responsibility to bring that to the attention of
the board?
MR. GARRE: Ordinarily we would bring that to
It was not brought to the

the attention of the board.

attention of the board in this case because different
parties were -- were governing the different proceedings.
But the fact is, is that it was not brought to the
attention of the board. It could have been brought to the

attention of the board and still could be today.
If there are no further questions --
QUESTION: Thank you, Mr. Garre.

Mr. Brands, we'll hear from you.
ORAL ARGUMENT OF HENK BRANDS
ON BEHALF OF THE RESPONDENT
MR. BRANDS: Mr. Chief Justice, and may it
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please the Court:
What I would like to do is I would like to start
by responding to Mr. Garre's suggestion that our proposed
rule may be a good idea but is not required by the
statute. We think it most certainly is, and this also

picks up on a question from Justice O'Connor.
5 U.S.C., section 7701(c)(1)(B), which is copied
at page 51 in the appendix to the petition, provides that
the decision of the agency shall be sustained -- and that
is by the MSPB -- only if the agency's decision is
supported by a preponderance of the evidence. That

provision calls for de novo review in the MSPB, in which
the agency bears the burden of proof to prove -- of proof
by a preponderance of the evidence.
And it's important to understand that that
applies not only to the conduct charged in the particular
charge before the MSPB -- here, for example, the conduct
charged to have taken place on September 13, 1997 -- but
also to aggravating facts to which the agency points in
support of its choice of punishment. QUESTION: The MSPB --

You're talking now about review
Is that

before the MSPB, not before the Federal circuit. correct?
MR. BRANDS:

That is correct, Mr. Chief Justice.

The MSPB has held that whenever the agency comes before
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the MSPB and relies on aggravating facts, not necessarily
the particular charge before the MSPB, but other things,
for example, the employee is simply not very good or
something like that, that has to be proven as well by --
by a preponderance de novo in the MSPB. That was held in

Douglas v. Veterans Administration in 1981, a seminal
decision in 1981, with which I do not --
QUESTION: You mean even if a grievance is not

pending, the board would have to review the prior
disciplinary action to be sure that that was supported by
a preponderance of the evidence? that.
MR. BRANDS: Well, Justice Scalia, I think that
The statute
Surely it doesn't mean

the burden of proof is always the same. says --
QUESTION:

Yes, but the burden of proof is this

employee has been convicted of prior disciplinary
violations in the past.
MR. BRANDS: QUESTION: MR. BRANDS: QUESTION: And --
Q.E.D., proven.
Certainly when --
You're saying that's not enough. The

-- the board has to inquire as to whether that prior
conviction, even if it was not grieved, was a valid one.
MR. BRANDS: No, Justice Scalia, we're not
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saying that.

In the situation you posit, namely where

there was a past disciplinary action which either was not
taken to the board or which became final after it was
taken to the board -- in that situation it may well be
reasonable to assume that the prior is supported by a
preponderance of the evidence. And in fact, if it was

taken to the board or to an arbitrator and the arbitration
has become final, then one would think that ordinarily it
would become collateral estoppel. QUESTION: But that is not --

Isn't that same presumption still

valid even though the -- the action is being grieved?
MR. BRANDS: QUESTION: Well, two things --
It's not as though it were unilateral

employer action without a hearing and procedural
guarantees. There's a whole -- you know, a whole series

of procedures that the employer has -- the Federal
employer has to go through, and -- and when those
procedures are followed, there is a judgment by the
employer.
MR. BRANDS: QUESTION: That is certainly --
And I gather that judgment is final

until -- what you're grieving is employer action, and --
and that action is final until a grievance overturns it.
MR. BRANDS: Justice Scalia, I think that the

analogy that the Government would like to draw is to an
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agency action that is subject to section 706 review under
the APA, but that is not the right analogy, we
respectfully submit.
The right analogy would be to on-the-record
adjudication under section 554 and 556 of the APA, the
situation where an agency simply levels charges. If you

don't do anything about them, those charges will become
final, but if you put the agency to the burden of -- of
proof, then you become the defendant in -- in the MSPB.
You -- you have the ability to put the Government to the
burden of -- of proof.
For example, in Jackson v. Veterans
Administration, a Federal circuit decision of 1985, the --
the Federal circuit described it as follows: by seeking

review, an employee places the agency in the position of a
plaintiff who has the burden of proof, who must come
forward with evidence to establish the fact of misconduct,
and the ultimate burden of persuasion is on the
Government.
QUESTION: Well, what we're reviewing here, Mr.

Brands, is not the Merit Systems Protection Board's
action, but the action of the Federal circuit. And I

think it's agreed that the board decision before it must
stand unless it's arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.
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MR. BRANDS: QUESTION:

Right.
As I understand it, the Federal

circuit here said this was not in accordance with law.
And I was puzzled at that because they didn't seem to
point to any law.
MR. BRANDS: Well, that is true, and perhaps the

brevity of the -- of the discussion by the court of
appeals can be explained on the ground of the fact that
the Government did not respond to any of respondent's
arguments in the court of appeals.
But the basic answer here is that what is not in
accordance with law about how the MSPB treats prior
disciplinary actions is that it disregards -- it
arbitrarily disregards the burden of proof.
QUESTION: Well, but you -- you say it's not in

accordance with law, and then in the same sentence, you
say it arbitrarily disregards the burden of proof. Now, I

would think those are two separate things under that
statutory language. If it's contrary to law, I think you

have to point to some provision of law --
MR. BRANDS: QUESTION: circuit did.
But you also say it's -- it's arbitrary. why -- why -- the Federal circuit didn't say that.
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And that's --
-- which I don't think the Federal

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MR. BRANDS:

That is correct, but nevertheless,

its judgment, we think, is -- is right on the money.
We think that there are two things wrong with
the way the MSPB does -- does -- treats prior disciplinary
actions. One is it ignores the statutory burden of proof
Secondly --

standard, section 7701(c)(1)(B). QUESTION:

Now, that's -- that's the standard

you say governs the Merit Systems Protection Board?
MR. BRANDS: That is correct. Whenever the --

whenever an agency comes before the MSPB, it cannot say
you have to defer to what we did because there was a
hearing and because there was notice and so on and so --
QUESTION: But that wasn't the basis for the

Federal circuit's decision here.
MR. BRANDS: We think it actually was, Your

Honor, because under --
QUESTION: MR. BRANDS: Where -- where do you find that?
We find that at the petition

appendix 7a where the court of appeals said that its rule
is necessary because the foundation of the board -- of the
MSPB's Douglas analysis would otherwise be compromised.
That may be a little telegraphic, but what the court of
appeals meant by that is --
QUESTION: Telescopic.

(Laughter.)
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MR. BRANDS:

And again, we would -- we would

suggest that the telegraphic nature of that may -- may
also be blamed on the Government's conduct of the
litigation in the court of appeals.
QUESTION: on the Government?
MR. BRANDS: Well, let -- let me just explain
Well, why -- why should it be blamed

real quick what we think that the court of appeals meant
by that. The court of appeals meant to say this. Under

Douglas v. Veterans Administration, the MSPB in any given
case will conduct a -- an inquiry to ensure that the
penalty fits the crime, so to speak. It will make sure

that the punishment is not disproportional, is not
unreasonable, and so on and so forth.
In the course of that, it is well established,
also under Douglas, the -- the agency may point to
aggravating facts. It may, for example, say this is not a

good employee or, as in this case, the employee has a
prior disciplinary record. It may do that, but in

Douglas, the MSPB held those facts must be supported by a
preponderance of the evidence.
QUESTION: I thought you already conceded in --

in response to an earlier question of mine that -- that
the -- that the board does not have to establish by a
preponderance of the evidence the accuracy of any prior
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disciplinary conviction.
MR. BRANDS: Honor.
QUESTION: then --
MR. BRANDS: distinction --
QUESTION: -- then why isn't it true? Suppose
I would -- I would draw a
I thought you did. If you didn't,
I don't think I said that, Your

there had been no grievance.

Is it possible that the

board has to go back and decide whether the prior
disciplinary conviction was supported by a preponderance
of the evidence?
MR. BRANDS: Well, the -- the statutory burden,
The burden is on the agency.

of course, always applies. QUESTION: MR. BRANDS:

So, your answer is yes.
No, it's not necessarily yes. I

would -- I would distinguish between three factual
scenarios.
One, the situation where a punishment is imposed
and it simply becomes final because the employee never
grieves it or never goes to the MSPB. If it then comes up

in a later case before the MSPB, I think it is certainly
reasonable for the agency to say, here are the documents
that show that this employee was -- was disciplined. She

or he never grieved it or never took it before the MSPB,
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and therefore, I have sustained my burden of proving --
QUESTION: up to the union.
MR. BRANDS: true. No, that's actually not entirely
But it's not up to he or she. It's

In a case like this, where a major penalty is at

issue, the employee actually can take it to the MSPB and
has the right to do that.
QUESTION: But still that isn't this case. We

could disagree with you and you'd still have a second
argument I take it. you lose the case? If we disagree with you on that, do
No, because this -- in this case we

have a grievance that was not fully determined.
MR. BRANDS: Your Honor. That's -- that's precisely correct,

We have in this particular case --
And -- and frankly, I have trouble

QUESTION:

with the proposition you just stated, but this case is
with -- with an unadjudicated grievance or a grievance
that had not been fully determined.
MR. BRANDS: And --
QUESTION: Well, Mr. Brands, as I understand it,
Precisely. That's exactly correct.

the board, MSPB, applies its so-called Bolling rule.
That is a case that the board itself decided, I guess.
Now, if the board finds the factors in the Bolling case
satisfied is that enough to meet the statute?
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MR. BRANDS:

We -- we don't think it is enough

in a situation like this situation where the prior is
being grieved, and here's why.
QUESTION: Did you challenge the Bolling rule?

Is that something we've been asked to review here?
MR. BRANDS: before the Court. Well, the Bolling rule is squarely

The Government relies on it, and what

we're saying is that the Federal circuit held essentially
that the Bolling rule is not right. Bolling rule that is wrong --
QUESTION: But do you assert that if -- if the
It's not so much the

board applies its Bolling standard, that is not enough to
satisfy the statutory burden of proof?
MR. BRANDS: We think it is enough in a

situation where the prior has become final on its own
steam. We think it is not enough in a situation where the

prior is still being grieved, and here is why.
If the prior is being grieved, the Government's
decision does not get any deference. always bears the burden.
QUESTION: Well, but if you view the prior
It -- the Government

disciplinary action taken by the employer as final,
subject only to some kind of collateral attack in a
grievance procedure, then it is final unless, at the end
of the day, the grievance procedure is successful.
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MR. BRANDS: characterize it.

That is not how we would

Justice -- Your Honor, this morning the

word collateral estoppel was first mentioned by Mr. Garre,
and that is remarkable because --
QUESTION: I think not collateral estoppel.

Viewing it -- the grievance as a collateral attack --
MR. BRANDS: QUESTION: MR. BRANDS: collateral attack. Well, we --
-- on an otherwise final action.
We would not view it as a

What happens if -- you either go to an

arbitrator or to the MSPB, if you place the Government in
the position of being a plaintiff who has the burden of
proof, who has the burden of proving de novo that what it
alleges actually happens. It is interesting that the

Government is -- is now saying that collateral attack
somehow applies to the agency's decision, and Justice
Ginsburg asked --
QUESTION: Mr. Brands, it wasn't the Government.

It was Justice Scalia who said this is not comparable to
an appeal for my suggestion that you would hold the second
proceeding in abeyance would apply. MR. BRANDS: QUESTION: Very well.
I'm -- I'm guilty.
It is not an appeal.

(Laughter.)
QUESTION: And unrepentant.
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(Laughter.)
QUESTION: But why did -- but when you answer

the question, would you tell us why it would make any
difference whether it is -- whether there's the collateral
proceeding going on, whether there's a direct attack going
on? Why isn't there a presumption of regularity that

attends the Government's action until it is, in fact,
overturned as a result of the arbitration process?
MR. BRANDS: We think there's no presumption of

regularity because when the action comes before the board
or before an arbitrator itself, it is not entitled to any
presumption of regularity.
QUESTION: That's for purposes of the
But for purposes outside the

arbitration proceeding.

arbitration proceeding itself, why isn't there a
presumption of regularity until it is overturned and
vacated?
MR. BRANDS: Justice Souter. Simply for this reason, Justice --

Whenever the Government comes before the

board and points to aggravating circumstances, it must
prove those by a preponderance of the evidence.
QUESTION: But that's the -- but I mean, that

gets us back to the question we keep going back and forth
on. Do they have to prove the fact of the determination

that there was in fact some prior infraction or do they
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have to prove the existence of the infraction in substance
just as if they were proving it as part of the current
charge? And it seems odd to me to say that they would

have to prove it just as much as if it were part of the
current charge.
MR. BRANDS: Well, I would -- I would
If it has been

distinguish between three situations.

adjudicated and has become final before an arbitrator,
then collateral estoppel will apply. If, however, it is

being challenged, collateral estoppel should not apply.
It is hornbook law that collateral estoppel does not apply
when a decision --
QUESTION: estoppel applies. Well, I'm not saying that collateral
The -- the -- you know, the employee
I'm simply saying that if it is

may be able to attack it.

-- it is not somehow shown to be invalid affirmatively,
why shouldn't a presumption of regularity attach. And I

think you're saying that no presumption of regularity
attaches, that the Government has the burden as an initial
matter.
MR. BRANDS: That is correct, although that

burden will be very easy to discharge in a case where a
prior has already become final or, for that matter, where
a prior was never attacked.
QUESTION: Okay. And you're saying the reason
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it isn't easy, when it is attacked, is that there is no
presumption of regularity.
MR. BRANDS: QUESTION: There is --
And I want to know there should be no

presumption of regularity.
MR. BRANDS: Presumption of regularity are

applied to a Government action that itself is entitled to
deference when it is reviewed by a court. The kind of

Government action that we're talking about --
QUESTION: But that's my question. Is it

entitled to enough deference so that all you have to do is
prove the fact of the Government action, that being
sufficient, unless it is affirmatively shown that the
Government action was wrong or invalid? question.
MR. BRANDS: The Government action, if it is
That's the

taken to the MSPB, is not entitled to any deference at all
because the Government bears the burden of proving de novo
that what happened actually occurred. Therefore, if

there's no deference -- if the Government is not entitled
to --
QUESTION: Then -- then what you're saying is

that the -- that the aggravating fact is subject to
exactly the same burden of proof that the specific
instance of -- of later conduct is -- is subject to, the
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-- the instance that gets us before the board on appeal
anyway.
MR. BRANDS: That's precisely correct, although

as I said, in two situations that is a burden of proof
that should be very easy to discharge.
QUESTION: MR. BRANDS: Yes, and I understand.
It's only in that third situation.

And note that the Government cannot rely on collateral
estoppel in that situation because it is well established
-- it's hornbook law -- that -- that when something is
reviewed de novo, it is not subject to collateral review.
For example, Wright and Miller say that in section 4433.
QUESTION: Well, but if -- if you're talking

about judicial proceedings, I don't think those rules
would necessarily carry over to this sort of rather low
level administrative proceeding.
MR. BRANDS: Your Honor, far be it for me, of

course, to -- to argue that collateral estoppel should
apply, but the MSPB, for example, has applied collateral
estoppel to prior final arbitral orders, and we don't
necessarily see anything wrong with that. And we think

that if the Government later comes before the MSPB and
points to a prior that was upheld by an arbitrator, it
thereby -- it thereby discharges its burden of proving
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We don't think

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that in a situation where that prior is being reviewed de
novo it makes sense to simply assume that the conduct
charged in that prior disciplinary action actually
occurred.
QUESTION: Well, but to say that the prior is

reviewed de novo, I'm not sure that that is an entirely
accurate statement because it was a prior that was left
unchallenged, I take it, at the time.
MR. BRANDS: No, Your Honor. All three priors

here were, in fact, under review at the time that the
Government pointed to them as -- as --
QUESTION: So, your statement then is limited to

the sort of prior which is under review.
MR. BRANDS: That's -- that's precisely correct.

We're not saying that the Government, when -- when
charging an employee with misconduct, may not point to
that prior, but when it comes before the MSPB, it must
discharge its burden of proof.
QUESTION: QUESTION: What is --
What -- what if the employer says

there is a prior here, as well as the current conduct,
that has never been grieved, never been challenged?
MR. BRANDS: Well, in that situation, it would

ordinarily be reasonable for the Government to argue and
the MSPB to -- to agree that it's reasonable to assume
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that a preponderance of the evidence exists in such a
situation because if the -- if the employee thought that a
preponderance did not exist, then he or she would probably
have taken it to the MSPB or to an arbitrator.
QUESTION: The board has to assume that. But as

I understand your case, the agency itself doesn't.
MR. BRANDS: Well, the agency is not -- is not

-- the question of whether or not the agency may simply
level a charge is not subject to this burden of proof.
This burden of proof applies before the MSPB.
QUESTION: Do you know of any other situation in

which the -- the review of agency action is conducted on a
basis more demanding than the agency action itself?
MR. BRANDS: QUESTION: Your Honor --
That is to say, if the agency ignored

the fact that -- that a grievance was pending, you assert
that would have been entirely lawful. The agency could
He's been
And

say, I don't care if a grievance is pending. convicted.

On the basis of that, you're fired.

that's perfectly okay, you say, for the agency to do.
MR. BRANDS: QUESTION: Well, that --
But then when it's on appeal to the

Merit Systems Protection Board, you say the Merit Systems
Protection Board can reverse the agency because at that
stage, suddenly the fact of the prior disciplinary action
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is not determinative.

That's -- it's very strange.

I

don't know any other instance in administrative law where
what the agency does is right, but on appeal it's wrong.
MR. BRANDS: appeal. I would not characterize it as an
It is much

It's -- it's different from that.

more like when, for example, the FTC or the SEC staff
charges a defendant with misconduct, it has to prove that
to an administrative judge. When the administrative judge

hears the case, the burden rests on the agency to prove
that by a preponderance. QUESTION: MR. BRANDS: However, when the --

But -- but -- go on.
When the agency levels its charges,

brings its charges in the first place, it does not have to
worry, do we -- can we sustain the burden of proof. can simply say we think there's probable cause of
misconduct here. It is much more like a prosecutor who
It

charges misconduct.
QUESTION: Well, of course, it has to worry
It's arbitrary, capricious, or

about the burden of proof.

contrary to law if it isn't supported by the evidence.
MR. BRANDS: QUESTION: I don't think so, Your Honor.
And what you're asserting is that

this evidence is -- is good evidence before the agency,
the mere fact of the prior disciplinary action, but it
suddenly becomes bad evidence before the Merit Systems
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Protection Board.
MR. BRANDS: Well, it's not bad evidence. It's

simply that before the MSPB, the -- the Government agency
has to prove his case by a preponderance. Now, at the

time that it charges, presumably the agency thinks that
those priors are good even though they're being grieved,
otherwise it wouldn't have imposed them in the first
place. But that doesn't mean that it doesn't have the

burden of proving by a preponderance when it comes in the
MSPB.
QUESTION: QUESTION: Mr. Brands?
Throughout the -- the proceedings

before the Merit Systems Protection Board, in the initial
decision of the administrator, the petitioner is referred
to -- the respondent is referred to as the appellant. I

mean, certainly the Merit Systems Protection Board thought
it was an appeal.
MR. BRANDS: true. Well, Your Honor, it -- that is

It is termed an appellant, but again, what -- what

Jackson v. Veterans Administration, a Federal circuit case
from 1985, says about that is that the employee, while
denominated the appellant, has the advantageous
evidentiary position of a defendant. like --
QUESTION: Where did the Federal circuit get
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So, it is much

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that from?
(Laughter.)
MR. BRANDS: That is simply because before the

Federal -- before the MSPB, the burden is on the
Government agency to prove its charges and review is de
novo. The burden of proof is on the Government.
QUESTION: Where is -- where is section 7701(b)

in the material before us in the briefs?
MR. BRANDS: It's in the appendix to the

petition, page 51, and we refer to it in our -- our claim
rested on the -- on this burden of proving --
QUESTION: Well, in your opinion, a woman who
19 priors

works for an agency is late for the 20th time. are under grievance. fired. All right?

Her boss, fed up, says, you're
Now, what's supposed to happen?
The Government can fire her.
However, if those priors

MR. BRANDS:

There's no question about that.

are all being grieved in those grievance proceedings, the
Government will have to prove its case.
QUESTION: All right. Now, that -- that -- of

course, then the -- as I read the Federal circuit, it says
just what you say. We hold that as a matter of a law,

consideration may not be given to prior disciplinary
actions that are the subject of ongoing proceedings
challenging their merits. So, what you're saying is they
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can't use those.
MR. BRANDS: QUESTION: MR. BRANDS: The Government --
The Government cannot use them.
No, I'm not saying that. The
The

Government agency is entitled to rely on them.

Government agency is allowed to say, you were late today.
By itself, that would not be enough to fire you. However,

you did it 19 times before, and because you did it 19
times before, we're firing you today. We know that your

19 priors are still being grieved, but we think that all
of those 19 are good.
QUESTION: MR. BRANDS: Right.
Now, however, when that removal

comes to the MSPB, in the ordinary case, those 19 priors
will have become final. Either they will have been

sustained or they will have been overturned by an
arbitrator or by the MSPB.
In the very unusual situation, the white
elephant that we have here, the case where somehow the
MSPB proceeding goes faster than the prior grievances, in
that very unusual situation, we have a problem. What we

have there is that the Government would have to prove its
case by a -- by a preponderance, but those priors are
still -- have not become final yet.
QUESTION: All right. 47
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So, the -- the opposite

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side is that would be a reasonable approach. says, we have another reasonable approach.

The agency
Our reasonable

approach is that we -- we just let them take account of
the fact that they've already been -- you know, they're
already finished, the 19, but the individual can ask us to
see if they're supported or clearly erroneous.
MR. BRANDS: QUESTION: their approach. What we think is --
That's Bolling. So -- so, that's
Theirs

So, why is yours more reasonable?

-- they see yours as reasonable. different one.
MR. BRANDS:

They say we have a

It's not a question of
We think it's a question of

reasonableness, Your Honor. what the statute says.
QUESTION:

Well, yes, but that -- that statute
It seems

seems to be talking about cross referencing B. to be talking about this proceeding.

There has to be a
And so, the

preponderance of evidence in this proceeding. issue is not resolved by the statute. I mean --
MR. BRANDS: QUESTION: Your Honor --

It's up for grabs.

-- the question is, is this piece of

paper, which says you were convicted 19 times before --
there are 19 pieces of paper, okay -- whether that counts
as evidence towards the preponderance to support what they
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did now.

And you could make the argument either way.
MR. BRANDS: Respectfully, Your Honor, that is

not how the MSPB itself has interpreted section
7701(c)(1)(B). It reads that the burden of proof as

applying not only to the particular charge before the
board, here case number 4. It reads it also as applying

to any aggravating circumstance, and in our view, it
couldn't really be any other way.
QUESTION: Well, now, Mr. Brands, we're

reviewing the Federal circuit's decision here, not the
MSPB's decision. Now, did the Federal circuit incorporate

that, the view you're expressing --
MR. BRANDS: QUESTION: MR. BRANDS: QUESTION: MR. BRANDS: Yes.
-- now, into its opinion?
Yes, it did, Your Honor.
Whereabouts?
And this is what I was referring to

when I was referring to that phrase on page 7 of the
appendix to the petition. It said, the Douglas analysis
And here's what it meant

would otherwise be compromised. by that.
QUESTION: MR. BRANDS: QUESTION:

Well, how can you tell --
The Douglas --
How can you tell that one cryptic

phrase -- how can you tell that's what it meant by that?
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MR. BRANDS: Your Honor.

Well, it actually said it twice,

But the reason why we believe that's what it

said is the Douglas analysis means that the MSPB in any
given case must ensure that there is a fit between the
punishment and the crime. And the way it does that is it

looks at the gravity of the particular offense, but it
also looks at other aggravating circumstances. That

analysis would be undermined, would be nullified if the
Government could simply come in and say, we got this one
little charge, and then we have these 19 others. Now,

these 19 others have never been proven, but you have to
take them as a given and you can only review them for
clear error even though --
QUESTION: They have been proven. I mean,

that's the fallacy in that.

There was a proceeding before

the board in which the board adjudicator found that they
had been proven.
MR. BRANDS: That's actually not correct, Your

What -- what happens in a disciplinary action is

that the Government -- a supervisor will simply charge the
misconduct, and then from there, it goes through these
grievance steps that are simply nothing other than another
supervisor saying, yes, it looks right to us. And

finally, it will go to an arbitrator, and that is the
first place where the Government is actually put to its
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burden of proving its charges by a preponderance.
QUESTION: MR. BRANDS: never gone --
QUESTION: The agency adjudicator can say, well,
Is that right? I mean --
These priors have

Oh, absolutely.

it wasn't proven, but you know, I think we ought to put
this on your record anyway.
MR. BRANDS: QUESTION: Well, the agency adjudicator --
Surely the agency has to find, by a

preponderance of the evidence, that the employee was
guilty of the alleged infraction.
MR. BRANDS: But the question is whether --

whether there's any reason for the MSPB to defer to that,
and we submit no. And here's why. If that action itself

were appealed to the MSPB, that action itself would not be
entitled to any deference. It's sort of like a prosecutor
Nobody would

-- prosecutor coming before a trial court.

argue that somehow the jury, or -- or in a bench trial,
the trial court, is supposed to defer to the prosecutor.
And we think that just -- just that those charges have
been leveled in the past rather than now before the agency
-- before the MSPB doesn't mean that any more deference --
QUESTION: QUESTION: QUESTION: But what we're talking --
If you really believe that --
What we're talking about here is --
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QUESTION: QUESTION: QUESTION:

If you really believe that, then --
-- sentencing.
-- then you should say that even when

there is no grievance, the board should not take account
of the prior -- of the prior disciplinary conviction. you really believe that --
MR. BRANDS: QUESTION: being grieved.
MR. BRANDS: Justice Scalia, I -- I wouldn't --
I
Well, respectfully --
-- you would say even if it's not
If

I wouldn't put it right that way or precisely that way. would think that the burden of proving that the prior
conduct, the misconduct, happened is still upon the
agency. However, it is very easy to prove it because

ordinarily what the Government will simply be able to do
is say, look, we have here a piece of paper that said she
did it and she never went to the MSPB or to an arbitrator.
So, therefore, she probably did it. situation --
QUESTION: Mr. Brands, before you finish, I'd
If in that

like you to answer the Government's assertion that your
neat solution, which is, agency, you can fire this person,
but MSPB must abide the grievance. And then if the

grievances are successful from the employee's point of
view, there would be reinstatement, back pay, I take it,
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all that.
Mr. Garre told us that the Government is stuck
because it can't fill that slot in the meantime because
the employee may come back. MR. BRANDS: How do you answer that?

Well, it's an argument that's
But

raised for the first time today here at the lectern.

I -- I don't think that that is -- that -- that doesn't
justify saying, well, in that case, we're going to say to
the Government, you don't have -- you don't have to meet
your burden of proof. QUESTION: The burden, of course, is --
But it does -- it does weaken your
It can

argument that the Government serves its purpose. fire this person. It can replace the person.

And then at

the end of the day, if the grievances are overturned, that
person simply gets reinstated.
MR. BRANDS: Well, I don't think it quite

weakens our argument, Your Honor, because we're talking
about letter carriers in this particular case, for
example. It's not as though the particular route that was

previously served by Maria Gregory is not -- is not
getting mail at this moment. What happens, of course, is

that other letter carriers are -- are put to work on that
route, and things march along just fine, which I assume is
why the --
QUESTION: Were the briefs correct in telling us
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there are 126,000 pending grievances in the postal system?
MR. BRANDS: The short answer is no, if the

allegation is that those are disciplinary grievances.
There are 126,000 cases pending, but the vast majority of
those are contract grievances and not disciplinary
grievances. Disciplinary grievances march through the

process in about a year or less, as in fact happened in --
in the two cases to which the -- the Government points in
-- in that footnote 3 in its reply brief.
QUESTION: Thank you, Mr. Brands.

Mr. Garre, you have 2 minutes remaining.
REBUTTAL ARGUMENT OF GREGORY G. GARRE
ON BEHALF OF THE PETITIONER
MR. GARRE: The Federal circuit ruling in this

case is not based in any way on the burden of proof
applied in board proceedings. And respondent didn't even

argue before the board that the -- that the board was
applying the wrong burden of proof in challenging or
considering her prior actions.
Respondent's reliance on the Douglas case is a
little bit odd because that case was followed by the
Bolling case and scores of other precedents which
established the framework by which the Merit Systems
Protection Board considers prior disciplinary actions,
even when they're subject to grievance. 54
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The board allows

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-- it requires the employer to prove the fact of the prior
action, and then it -- it allows the employee -- in
addition to the fact of the prior action, that certain
procedural protections were present. And then it allows

the employee an opportunity to collaterally attack that
action.
That -- that comports with the employer's burden
of proof under the statute. It's supported by decades of

administrative practice, and the Federal circuit had
absolutely no basis for invalidating that practice without
citing to any provision of -- of law or anything else.
Now, to follow up on a question by Justice
Kennedy, I want to make clear that we would not object to
the continuance of the grievance. The employers would not

object if this Court reverses the decision below.
If there are no further questions.
CHIEF JUSTICE REHNQUIST: The case is submitted.
(Whereupon, at 11:02 a.m., the case in the
above-entitled matter was submitted.)
Thank you, Mr. Garre.

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